Impact of Hogsett on Determinations of Common Law Marriage: A Guide for Practitioners

Attorney Ann Gushurst of Griffiths Law PC represented Edi L. Hogsett in a case which has expanded the definition of common-law marriage in Colorado. The opinion on this case may make proving common-law marriages more difficult. For this reason, Ms. Gushurst has provided the following guide for practitioners handling such cases under the new evidentiary standards.

How to Apply New Evidentiary Standards

What Is a Common Law Marriage?

Common-law marriage has been defined as “mutual consent or agreement of the couple to enter the legal and social institution of marriage, followed by conduct manifesting that mutual agreement.”


The courts do not define what marriage is, but rather refer to a “life together as spouses in a committed, intimate relationship of mutual support and obligation.”

Ironically, the Hogsett relationship had all of these factors.

Burden of Proof

Still is preponderance of the evidence, but the burden is on the person alleging the marriage.

Practice Tips

  • There will be a negative inference if the filing for divorce does not occur very quickly after the breakup.
  • Failure to seek ceremonial marriage does not weigh against finding of marriage.

Evidence to Show Same

  • The court is to give weight to an express agreement to be married
  • In the absence of such an express agreement, courts can infer consent via conduct.  In doing so, they will look at the totality of the circumstances, and one piece of conduct cannot outweigh others unless it is a disavowment of being married.
  • There must be some objective evidence of the relationship.  The “CENTRAL” requirement is mutual consent.

Evidence to Show Marriage Existed

  • Joint property (practice tip: look for transfers of separate property to joint status, which would evidence intent)
  • Joint accounts
  • Joint tax returns
  • Reputation amongst community of marital status
  • Common last name, or one person’s child given name of other spouse
  • Evidence of mutual support and obligation
  • Beneficiary designations
  • Listing the other as spouse on official documents
  • Health insurance by one extended to the other as “family” or “spouse”
  • Commitment ceremony
  • Celebrated anniversaries
  • Exchange of rings
  • Evidence of joint estate planning
  • Mutual children
  • “Sincerely held beliefs regarding the institution of marriage.”
  • Hallmark cards “to my wife/ husband”
  • Showing that the families of the spouses considered the other spouse part of an extended family group

Evidence to Disprove Marriage

  • Anything evidencing a lack of intention to be married or belief in the institution of marriage
  • Did not call each other “wife” or “husband”; no cards reflecting same
  • Statements that one or the other “did not believe in marriage”
  • Evidence that they do not believe people can love each other for the rest of their lives
  • Although a court should not consider conduct at the time of the breakup, long standing conduct evidencing lack of commitment (i.e. other relationships) would, under the reasoning in this case, tend to disprove a marriage.
  • Lack of community awareness of the status of the relationship.  The court did note that a choice “not to broadly publicize the nature of their relationship may be explained by reasons other than their lack of mutual agreement to be married” but leading this information would challenge the other side to provide such an explanation.
  • Lack of cohabitation
  • Lack of joint property, joint accounts

Hogsett Opinion